Last week, we discussed appointing someone to handle your finances and other property when you cannot and avoiding a court appointed conservatorship. A financial power of attorney will work very well in those instances, but what about health care decisions? Who would make your medical or mental health care treatment decisions if you cannot because of your mental disability due to an accident, illness or injury?
The only persons who can make such decisions for you when you cannot are those appointed by you or by the probate court. If you have not appointed someone, your loved ones would have to file a petition in probate court to have a guardian appointed to make your personal and health care decisions during your mental disability.
In guardianship proceedings, the probate court judge first makes a determination that you cannot make your own personal decisions and are legally incapacitated. The judge then appoints a guardian and issues letters of guardianship indicating what your guardian can do. This is not the result that most people would want. Most people, including myself, would rather have someone they choose making these decisions, without court involvement.
In most instances, you can avoid the court guardianship process and have your medical and mental health care wishes honored with a durable power of attorney for health care, also called a designation of patient advocate. Without this important document, there may be questions about your wishes regarding medical and mental health care treatment and life sustaining measures.
There are six key elements, among others, that I believe should be included in every durable power of attorney for health care:
1. Appointment of Patient Advocate with Back-ups. Your patient advocate, also called a health care agent, makes your medical and mental health care decisions when you cannot. It is important that you choose trusted individuals who will uphold your wishes when the time comes. It is a good idea to have at least two back-up patient advocates in the event that the prior appointee dies, is incapacitated or is otherwise unable to act. All too often, we see powers of attorney which only name one or two patient advocates, none of whom are able to act.
2. Mental Health Care Powers. By including mental health care powers in your health care power of attorney, you give your patient advocate authority to make your mental health care treatment decisions when you cannot. Without specific mental health care powers, your patient advocate may not be able to make certain mental health care treatment decisions relating to Alzheimer’s, dementia, depression, anxiety, etc.
3. Anatomical Gift – Organ Donation Powers. You can give your patient advocate the power to make an anatomical gift of all or a part of your body or organs to those in need or for study. You can also give your patient advocate the power and authority to resolve a conflict between the terms of your health care directives and your anatomical gift. This allows you to have an agent to make sure that your anatomical gift happens. If you do not want to make such a gift, you can specify your patient advocate does not have such powers.
4. Health Insurance Portability and Accountability Act (HIPAA) Authorizations. Your health care power of attorney should include the appointment of your patient advocate as your HIPAA representative and two HIPAA authorizations. One HIPAA authorization allows your representative to have access to your confidential medical information so he or she can talk to your doctors and make informed decisions about your care and treatment. A second authorization allows your patient advocate to release your confidential medical information to others, such as other health care providers or health insurance companies.
5. Living Will Provisions. Living will provisions, also called advance medical directives, specify your wishes regarding end-of-life care when you can no longer speak for yourself. This includes the withholding or withdrawing of medical treatment at such time. You specify to your patient advocate when to pull the plug.
There is a wide range of instructions you can have in your living will. At one end of the spectrum, you can say keep me alive no matter what. I have only had five clients in 30 years who wanted this. At the other end of the spectrum, you can say, do nothing no matter what, Do-Not-Resuscitate (DNR). I have had a number of clients over the years desiring a DNR. They usually either already have a debilitating or terminal illness, or they are in their upper 80’s or above and do not want to spend their last days in an incapacitated condition.
Most of our clients are somewhere in the middle and do not want to be kept alive if they are in a persistent vegetative state, in an irreversible coma, have a terminal illness and artificial means only prolong the dying process or have a condition in which the burdens of treatment outweigh the benefits. You can leave instructions for these or other situations to indicate whether you would or would not want feeding or hydration tubes, mechanical breathing, CPR, dialysis or other life sustaining therapies.
6. Designation of Funeral Representative. You should include the appointment of your patient advocate or others to make decisions about your funeral arrangements and the handling, disposition, or disinterment of your body, including decisions about cremation, and the right to possess your cremated remains.
In addition to being in your health care power of attorney, we recommend that your HIPAA Authorizations, Living Will and Designation of Funeral Representative be also in separate stand-alone documents. This makes things easier when it comes time for your agent to act.
Completing these documents is crucial, but it’s still not enough. It’s also essential to do a few other things.
First, you should talk to your loved ones. Make sure that your patient advocates are willing to do it. Also discuss with your loved ones about your wishes, especially about end-of-life care. The more information your loved ones have about your views, the more you will help yourself and your loved ones should the need arise down the road to make decisions about your care. These discussions can help ease the emotional stress your loved ones may feel in making difficult decisions about your care, especially at the end-of-life.
Second, if you have already completed these documents, it is important to review them periodically to make sure they still reflect your wishes. We recommend that you look at them at least once a year, and update them if necessary
Third, it is also critically important that these directives be available to hospitals, doctors and other health care providers right away, especially in an emergency. One way to accomplish this is through a membership in an emergency access service for your health care directives such as Docubank®. This service will get your health care power of attorney and related documents to a health care provider who needs them at a moment’s notice, anywhere in the world. This service also supplies a listing of your medical conditions and allergies, together with the names and phone numbers of your emergency contacts/patient advocates and your doctor, so they can be contacted in an emergency. You can also include a list of your medications. As part of this membership, you receive an emergency wallet card that instructs the hospital to call a toll-free number or go online to access your health care documents, medical information and emergency contacts.
A durable power of attorney for health care protects you and your loved ones. Make your wishes known now, so that they can be followed later.
By: Matthew M. Wallace, CPA, JD
Published edited July 31, 2016 in The Times Herald newspaper, Port Huron, Michigan as: Decide health care before you can’t